The Al-Aqsa Intifada and International Law

(The author served as Legal Adviser to the Palestinian Delegation to the Middle East peace Negotiations from 1991 to 1993. The viewpoints expressed here are his own.)

…I am not here this evening to go through the entire history of the Israeli-Palestinian conflict. That would require an entire course. But I do want to talk about the current situation with 260 Palestinians shot down dead like dogs in the street by the Israeli army with weapons provided by the United States government and the United States taxpayers — that means you and me.

It appeared this summer that, if you listened to the news media, we were on the verge of peace; and now, there is a horrible war. What happened? And why?

We have to go back to the peace negotiations that were initiated by President Bush in 1991 starting in Madrid and then continuing in Washington, D.C. It was my great honor to have served as the Legal Adviser to the Palestinian Delegation to the Mideast Peace Negotiations. And in the Fall of 1992, they asked me to analyze the first Israeli Peace Proposal that was given to them in the negotiations.

When negotiations started in the Fall of 1991, nothing happened. They were under Shamir of the Likhud party, then Prime Minister of Israel. There were no reasonable good-faith negotiations at all. Indeed, he admitted that his whole objective was to stall for the next ten years. But Likhud lost the election in the Spring of 1992, Labor came to power under Prime Minister Rabin and they finally tendered a proposal in the Fall of 1992.

I was asked to analyze it. And the precise question given to me by the Palestinian Peace Team was: “Tell us what is the closest historical analogue to what they are offering us here!” And I went back to my hotel room and spent an entire day reading through the document, came back and reported:” A bantustan, they are offering you a bantustan.” Akin to the banstustans that the apartheid Afrikaaner regime had established for the Black People in the Republic of South Africa. And I proceeded to go through the entire document pointing out that basically this Peace Proposal carried out Prime Minister Menachim Begin’s disinterpretation of the Camp David Accords, which was rejected by U.S. President Jimmy Carter, that all they called for was autonomy for the people and not for the land as well. After consultations among themselves, and under the Chairmanship of His Excellency Dr. Haidar Abdul Shaffi, the Palestinian Delegation rejected this Bantustan Proposal.

What happened next is that the Israeli government took the Bantustan Proposal and opened up a secret channel of negotiations in Norway and presented the Bantustan Proposal in secret unknown to the Peace Delegation, unknown to almost all of the leadership of the Palestinian People, let alone the Palestinian People themselves. And this Bantustan Proposal became the Oslo Agreement that was signed on the White House steps on September 13, 1993. It was for that reason that His Excellency Dr. Haidar Abdul Shaffi refused as a matter of principle to attend the signing ceremony. And what happened then starting in 1993 was that the United States working with Israel attempted to impose a Bantustan model on the Palestinian People.

Now, you might ask yourself: Why would President Yassir Arafat accept and sign a Bantustan Proposal for his People? I really don’t know. He did not discuss this matter with me. He did discuss it with Dr. Abdul Shaffi. I was not privy to that conversation. But in fairness to President Arafat, I believe he felt that he would take what was offered to the Palestinian People by Israel and the United States even if he knew it was a Bantustan, and try to prove his good faith and the good faith of the Palestinian People, that they were willing to live in peace with Israel and the Israeli People — that they would go through a trial test period of five years of this Bantustan model and at the end of the five years there would then be a legitimate Palestinian State. Unfortunately this is not what happened. The United States and Israel continued to impose their Bantustan Model on the Palestinian People throughout the course of the Oslo process and indeed even after the expiration of Oslo.

That then brings us to this Summer — the so-called Camp David Negotiations. This was not the idea of the Palestinian leadership; rather it was the idea of Prime Minister Barak with the support of President Clinton. Basically, Clinton pressured the leadership of the Palestinian People into accepting a permanent Bantustan arrangement for the West Bank and Gaza Strip. And of course, for that reason, it failed. The negotiations at Camp David failed. Now, at that point, President Clinton proceeded to blame the leadership of the Palestinian People for rejecting a Bantustan and then proceeded to illegally threaten the movement of the United States Embassy from Tel Aviv to Jerusalem if President Arafat did not accept the Bantustan Proposal permanently, which he refused to do and to his credit.

That being said, on September 28, former General Ariel Sharon, the Butcher of Sabra and Shatilla, the man responsible for the massacre of 2,000 innocent Palestinians at the refugee camps of Sabra and Shatilla, the architect of the Israeli invasion of Lebanon, that killed 20,000 people in Lebanon, a man cashiered by his own government, at that time appeared at Haram al Sharif in Jerusalem — the big plateau — the third holiest site in Islam — where it’s the Al Aqsa Mosque on the one hand and the Dome of the Rock on the other, where Mohammed ascended to Heaven — surrounded by about 1,000 troops undoubtedly with the approval of Prime Minister Barak. They knew exactly what they were doing. They knew exactly what the reaction of the Palestinian People would be to this provocation and desecration. And if there was any doubt about it, the Israeli Army returned the next day and shot dead several Palestinians on Haram al Sharif, thus setting off what has come to be known as the Al Aqsa Infada, in support of the Al Aqsa Mosque.

Now on 7 October 2000, the United Nations Security Council adopted a resolution that is extremely important. The vote was fourteen to zero — the United States government abstained. It did not go for; it did not go against; it abstained. The United States Government could have vetoed this resolution, but it did not. And so it is a matter of binding international law. I won’t go through the entire resolution, but I do want to spend a few moments commenting on its most important provisions.

Paragraph 1: The Security Council “deplores the provocation carried out at Al-Haram Al-Sharif in Jerusalem on 28 September 2000 and the subsequent violence there….” Notice, the Security Council by a vote of 14 to 0 made it very clear that it was Sharon’s desecration of the Haram al-Sharif with the support of Prime Minister Barak that is responsible for the start of the current round of bloodshed and warfare in occupied Palestinian Lands today. Nothing could be further from dispute than this point adopted 14 to 0 by the Security Council. Even the United States did not go against that determination.

Notice in paragraph 3, again the Security Council 14 to 0, “Calls upon Israel, the occupying Power….” Occupying power has a definite meaning in international law. Israel occupies the West Bank, the Gaza Strip, and the entire City of Jerusalem. Israel is what we lawyers call a belligerent occupant. Israel has no sovereignty over the West Bank and Gaza Strip, or the entire City of Jerusalem. Israel is not the sovereign. It occupies these Palestinian Lands. And so what we see here is a struggle between the belligerent occupant Israel against the Palestinian People living on their own lands.

Belligerent occupation is governed by The Hague Regulations of 1907, as well as the Fourth Geneva Convention of 1949. So Israel has no sovereignty over the West Bank and Gaza Strip and Jerusalem. This is not their land as far as the Security Council is concerned, as far as international law is concerned, as far as the entire international community is concerned, even as far as the United States of America is concerned. This is not Israeli land. The West Bank, the Gaza Strip, and the entire City of Jerusalem — this is occupied Land. And all of these areas are subject to The Hague Regulations of 1907, the Fourth Geneva Convention of 1949, and the Customary Laws of Belligerent Occupation. Israel is not the sovereign. And when you read in the newspapers Israel saying, well this is our land, it isn’t. Again, the Security Council determined 14 to 0, it is not their land.

And that has been the case for the West Bank and Gaza Strip since the war of 1967. That has been the case for East Jerusalem since the war of 1967. As for West Jerusalem, the world has never recognized Israel’s annexation of West Jerusalem either. That is why the United States Embassy and the Embassies of almost every country in the world that has diplomatic relations with Israel, except for a few banana republics that have been bought and paid for, have their embassies in Tel Aviv and not Jerusalem.

Second, paragraph 3 “Calls upon Israel, the occupying Power, to abide scrupulously by its legal obligations and its responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in a Time of War of 12 August 1949….” Again, the vote 14 to 0. The Fourth Geneva Convention applies to the West Bank, the Gaza Strip, and the entire City of Jerusalem, in order to protect Palestinians. The Palestinian People living in these Lands are “protected persons” within the meaning of the Fourth Geneva Convention. All of their rights are sacred under international law. Under international law the Palestinian People have more rights than you or I or anyone else sitting in this hall today. There are over 147 articles of the Fourth Geneva Convention that protect the rights of every one of these Palestinians. And as we are seeing today, the Israeli Government is violating and has in the past been violating, the rights of the Palestinian People under the Fourth Geneva Convention. Indeed, violations of the Fourth Geneva Convention are war crimes. So this is not a symmetrical situation. The Israeli army, occupying army here; Palestinian civilians over there — and their rights are protected by those over 147 articles. That is very clear — nothing could be clearer. And as a matter of fact, the gross violation of Palestinian rights by the Israeli army in occupied Palestinian Lands constitutes war crimes.

Indeed, it’s far more serious than that. The United Nations Human Rights Commission sent a Special Rapporteur to occupied Palestinian Lands to investigate the situation that has occurred as a result of the Al Aqsa Intifada. And the U.N. Human Rights Commission then adopted a resolution condemning Israel for violating the Fourth Geneva Convention, its rights as a belligerent occupant, and stating that Israeli policies constitutes “a war crime and a crime against humanity.” Let me repeat that: “a war crime and a crime against humanity.” I think we all have a general idea of what a war crime is and I’m not going to lecture on that here. There are different varieties of war crimes. There are the more serious “grave breaches” of the Fourth Geneva Convention, and we see that every day — willful killing of Palestinian civilians by the Israeli army is a grave breach mandating universal prosecution for these war crimes.

But I want to focus for a moment on “a crime against humanity” — as determined by the U.N. Human Rights Commission set up pursuant to the United Nations Charter. What is a crime against humanity? This goes back to the Nuremberg Charter of 1945. And in the Nuremberg Charter of 1945 drafted by the United States Government there was created and inserted a new type of international crime specifically intended to deal with the Nazi persecution of the Jewish People. The paradigmatic example of a crime against humanity is what Hitler and the Nazis did to the Jewish People. This is where the concept of crime against humanity was formulated and came from. And this is what the U.N. Human Rights Commission is now saying that Israel is doing to the Palestinian People. A crime against humanity.

Moreover, a crime against humanity is the direct precursor to the international crime of genocide recognized by the 1948 Genocide Convention. Again, the theory here was that what Hitler and the Nazis did to the Jewish People required a special international treaty that would codify the concept of a crime against humanity. And that treaty ultimately became the 1948 Genocide Convention. You will note the U.N. Human Rights Commission does not go so far as to condemn Israel for committing genocide against the Palestinian People. But it has condemned them for committing a crime against humanity, which is the precursor to genocide. And I submit that if something is not done quite soon by the American People and the United States Government to stop Israeli war crimes and crimes against humanity against the Palestinian People, it could very well degenerate into genocide, if it is not there already.

Now, that is, I think, a fair and accurate legal characterization of the situation and you will note even the United States Government did not veto the Security Council Resolution although it did oppose the U.N. Human Rights Commission Resolution which is not unexpected.

Now today we’ve heard a proposal from Prime Minister Barak to accelerate negotiations with the Palestinian People. All I’ve read are the press accounts and his descriptions of it. It does appear to me that he continues to intend to impose his Bantustan model upon the Palestinian People. Personally I have always been of the opinion along with my client and my friend Dr. Haidar Abdul Shaffi that the Bantustan model will never work. That if the United States and Israel attempt to continue imposing the Bantustan model, or even somehow bully, threaten, intimidate and coerce President Arafat into signing a Bantustan agreement, it will never work, and we will continue to see violence and bloodshed in these occupied Palestinian Lands.

That all being said, I still believe that peace is possible. Indeed, it was my job as Legal Adviser to the Palestinian Delegation to the Middle East Peace Negotiations to figure this out on paper on instructions of Dr. Haidar Abdul Shaffi himself. On November 15, 1988, the Palestine National Council proclaimed an Independent Palestinian State in Algiers and also in front of Al Aqsa Mosque in Jerusalem. Again, notice the importance and the significance Al Aqsa to the Palestinian People. This created a remarkable opportunity for peace if Israel really wants peace. The Declaration of Independence accepted the U.N. General Assembly Partition Resolution 181 of 1947 calling for the creation of a Jewish State and an Arab State in the former mandate for Palestine together with an international trusteeship for the City of Jerusalem. In my opinion, this is the only solution to the problem: A Palestinian State — a genuine free, independent Palestinian State on the West Bank and Gaza and shared sovereignty over the City of Jerusalem, sovereignty shared between Israel and Palestine, Jerusalem as the joint capital of both states. In my opinion, this arrangement can produce peace between Israel and Palestine. The current Bantustan Proposal offered by Barak with the support of President Clinton would only produce more war.

Indeed, it should be emphasized that Israel officially accepted the U.N. Partition Resolution in its own Declaration of Independence and as a condition for its admission to membership in the United Nations Organization. So there is no dispute here as to the legality of the two-state proposal and some type of shared arrangement for Jerusalem. Moreover, as another express condition for its admission to the United Nations Organization, Israel officially endorsed and agreed to carry out U.N. General Assembly Resolution 194 of 1948 which determined that the Palestinian refugees have a right to return to their homes, or that compensation should be paid to those who choose not to return. Prime Minister Barak has rejected Resolution 194 despite the fact that Israel accepted it as a condition for its membership in the United Nations Organization. Indeed, this same right is recognized in article 13, paragraph 2 of the 1948 Universal Declaration of Human Rights — and here, we are commemorating the anniversary of the Universal Declaration of Human Rights and we are also commemorating the anniversary of the Partition Resolution. And that article 13(2) says quite clearly, “Everyone has the right … to return to his country.” It’s a basic human right of the Palestinian People. This is customary international law. There will be no peace until the Government of Israel is prepared to live up to the promise it gave to implement Resolution 194. As you know, Israel accepted one million people from the former Soviet Union and moved many of them on to occupied Palestinian Lands in violation of the Fourth Geneva Convention. Well they could have easily accepted a million Palestinians instead and have gone a long way towards solving this problem. But again, the potential is still there for a peace settlement if we see good faith on the part of Israel and the United States Government. I regret to report that so far we have not.

I really do not know what will happen. As you know the Clinton administration will be going out of power. We don’t know who the next President will be. Prime Minister Barak has called for new elections. There is enormous turmoil in the situation. Palestinians are being killed every day as we speak courtesy of the United States Government. And I submit that it is up to you students to do something about this situation. I remember when I first came to the University of Illinois in 1978. The anti-apartheid movement that was started in this country by students and student organizations protesting, demonstrating, organizing leaflets, demanding divestment, disinvestment, organizing on a national and international basis. And eventually it culminated in the adoption of the Comprehensive Anti-Apartheid Act of 1986 which was the death blow to the racist Afrikaaner Apartheid Regime in South Africa. When that was adopted and the United States was completely cut off from any cooperation with South Africa, it was very clear to the Afrikaaner Apartheid Regime that apartheid had to be dismantled. Soon thereafter, Nelson Mandela was released from prison. Negotiations began. Democratic elections occurred in South Africa and now the African National Congress governs South Africa. De jure apartheid has been dismantled in South Africa. Nelson Mandela became the President of the Republic of South Africa. The same situation can happen here.

You students can go out, research what the anti-apartheid movement did in this country, and your predecessors starting twenty years ago, and do the exact same thing here. You have to. If you want to see peace in the Middle East, you’re going to have to go out and do something because so far the United States Government is not an honest broker. They never have been. I have been at these negotiations. I can tell you that the United States fully supports whatever Israel wants.

So I leave here with an injunction that you students go out and study the situation. Study the techniques of your predecessors in the anti-apartheid movement. Proceed to organize and try to promote peace in the Middle East. Peace between the Israeli People and the Palestinian People that can last. I believe this is possible. But you cannot rely on the government, on the politicians in Washington to do it. You’re going to have to do it yourselves. Thank you.

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